These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
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The Ninth Circuit has determined that DHS may parole in a lawful permanent resident (LPR) who has pending criminal charges, if a conviction under those charges would render the LPR inadmissible. In so doing, the Court deferred to the Board of Immigration Appeals’ decision in Matter of Felix Valenzuela.
The full text of Vazquez Romero v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/28/15-72947.pdf
The Ninth Circuit has determined that the regulatory departure bar does not bar the agency from sua sponte reopening a removal order.
The full text of Balerio Rubalcaba v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/02/17-70845.pdf
The Ninth Circuit has reversed the Board’s denial of CAT protection to an indigenous Mexican woman, finding that the Board reviewed the judge’s factual findings de novo, despite its invocation of the clear error standard. “The BIA disagreed with the IJ’s view of the evidence. But its only explanation of why the IJ’s decision was illogical, implausible, or without support was that ‘the IJ’ did not acknowledge that the Mexican judicial system took appropriate steps to correct any past due process errors committed by the officers of the Office of Anti-kidnapping and Extortions, that the respondent reported the torture and was not subsequently harmed or threatened while in custody for nearly 8 months, and that other members of her family have remained unharmed in Mexico.’ The BIA did not explain how these alleged errors showed lack of logic, plausibility, or support in the record on the part of the IJ. The BIA’s reasoning is therefore insufficient to demonstrate that the BIA engaged in clear error review.”
The full text of Soto-Soto v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/11/20-70587.pdf
The Ninth Circuit has sustained the appeal of an asylum applicant who moved to reopen her proceedings after her abusive husband was deported to India, and her in-laws threatened to kill her if she returned. The court emphasized that a change in personal circumstances completely outside the applicant’s control can support reopening. The court also noted that increasing violence against women (especially widows) in India supported reopening of the case.
The full text of Kaur v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/21/18-72786.pdf
The Ninth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of Davey and determined that the circumstance specific approach applies to the personal use exception for marijuana-related deportability.
The full text of Bogle v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/23/19-72290.pdf
An amended opinion can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/29/19-72290.pdf
The Seventh Circuit has determined that a respondent who makes a timely objection to a defective Notice to Appear need not show prejudice from the defect in order to obtain dismissal of the proceedings.
The full text of Avila de la Rosa v. Garland can be found here:
The Seventh Circuit has determined that Illinois’ burglary statute is indivisible between an intent to commit a felony and a intent to commit theft.
The full text of Parzych v. Garland can be found here:
The Sixth Circuit has determined that a lawful permanent resident has no recognized liberty interest in the issuance of an immigrant visa to his spouse.
The full text of Ahmed Baaghil v. Miller can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0134p-06.pdf
The Sixth Circuit has determined that administrative closure is available in removal proceedings to non-citizens eligible for provisional waivers of unlawful presence. Although the court had previously deferred to the Attorney General’s decision in Matter of Castro Tum, it limited its prior holding as inapplicable to provisional waiver applicants. “Administrative closure is ‘appropriate and necessary’ in this circumstance for the disposition of Garcia’s immigration case. Absent administrative closure, Garcia and other noncitizens in removal proceedings who are seeking permanent residency would be unable to apply for a provisional unlawful presence waiver despite the authorizing regulation.”
The full text of Garcia-Deleon v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0127p-06.pdf
The Fifth Circuit has determined that a Texas conviction for online solicitation of a minor is a crime of child abuse because it requires the knowing solicitation of a minor with the intention that the minor engage in a sex act. The court did not directly address the petitioner’s argument that the statute is overbroad because it defines a minor to include a person the defendant believes is under age 17.
The full text of Adeeko v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/19/19-60703-CV0.pdf
The Fifth Circuit has determined that whether an applicant for cancellation of removal can demonstrate exceptional and extremely unusual hardship to qualifying relatives is a mixed question of fact and law that the court has jurisdiction to review.
The full text of Guerrero Trejo v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-60353-CV0.pdf
The Fourth Circuit, in an en banc decision, has determined that the agency must consider a child’s age when determining whether harm he suffered rose to the level of persecution. The court also acknowledged that an issue may be exhausted by virtue of the agency addressing it in its decision, even if not raised in detail in the briefing before the agency. Notably, the court also determined that the issue of government protection was raised in the Notice of Appeal to the Board, and did not have to find exhaustion based solely on the Board’s analysis of the issue.
The full text of Portillo Flores v. Garland can be found here:
The Fourth Circuit has determined that a Virginia conviction for unlawful wound is a crime of violence because it requires the infliction of bodily injury with intent to maim, disfigure, disable, or kill.
The full text of Moreno-Osorio v. Garland can be found here:
The Fourth Circuit has determined that EAJA fees are not available in habeas actions challenging civil detention because such proceedings are not truly civil actions.
The full text of Obando-Segura can be found here:
The Fourth Circuit has determined that Immigration Judges have a duty to develop the record in all cases, and that duty is especially important when the applicant is unrepresented. “[I]n pro se cases, immigration judges’ duty to develop the record includes adequately explaining the hearing procedures and the relevant legal requirements in plain language. In particular, immigration judges must provide respondents with sufficient guidance as to how they may prove the elements of their claims—i.e., what evidence will demonstrate their eligibility for relief from deportation and in what form that evidence could be presented.” “[W]hat the aforesaid duty requires of an immigration judge inevitably depends on the particulars of each case—the respondent’s characteristics, such as age, education level, detention status, and immigration history; the applicable ground(s) of removability; and the form(s) of relief sought.”
The court further determined that the Board’s decision in Matter of W-Y-C- & H-O-B-, which requires asylum seekers to provide an exact delineation of proposed particular social group to the Immigration Judge at the penalty of forfeiting appellate review of any of social groups, should be applied to pro se applicants. “Requiring pro se asylum seekers to clearly indicate the exact delineation of their potential particular social groups would be completely inconsistent with immigration judges’ robust duty to help such applicants articulate a legally cognizable group.”
Finally, the court held that “that an immigration judge’s failure to satisfy his or her duty to fully develop the record is presumptively prejudicial, unless the error is plainly irrelevant to, or otherwise does not hinder in any way, the reviewing court’s ability to assess whether prejudice occurred.”
The full text of Arevalo Quintero v. Garland can be found here: https://www.ca4.uscourts.gov/Opinions/191904.P.pdf
The Third Circuit has clarified the standards for reopening a removal proceeding based on changed country conditions, noting that there is both a materiality standard and a prima facie standard that must be met. “Materiality requires that applicant’s evidence address the deficiencies of her application, while the prima facie standard requires that the evidence be sufficient to show a reasonable likelihood that the statutory requirements have been met. When an IJ denies relief upon finding that an applicant has failed to meet a particular element of the claim, the applicant moving to reopen must present evidence directly addressing the element the IJ found deficient. The applicant’s evidence, taken as a whole, is not material if it merely strengthens the other elements of her claim without addressing the element the IJ found deficient. But if the applicant presents new evidence that addresses the IJ’s findings and was previously unavailable, she clears the procedural hurdle. Then, if the new, material evidence of changed country conditions can show a reasonable likelihood that the statutory requirements [for relief] have been satisfied, she clears the substantive hurdle.”
The full text of Darby v. Attorney General can be found here:
The Second Circuit has certified to the New York State Court of Appeals the question of whether an intent to “appropriate” property under New York Penal Law § 155.00(4)(b) requires an intent to deprive the owner of his or her property either permanently or under circumstances where the owner’s property rights are substantially eroded. The Court determined that an answer from the state high court was necessary to determine if New York convictions for petit larceny constitute crimes involving moral turpitude.
The full text of Ferreiras Veloz v. Garland can be found here:
The Second Circuit has determined the Board of Immigration Appeals’ decision in Matter of JM Acosta - which addresses the finality of a conviction on direct appeal - is not entitled to deference. The Court agreed that the definition of conviction in the INA is ambiguous with respect to whether it applies to convictions on appeal. However, it disagreed with the burden-shifting framework laid out in JM Acosta.
“We need not here decide whether some limits on the finality requirement may appropriately be read into the IIRIRA, because we conclude that the specific burden-shifting regime and evidentiary standard demanded by the BIA to show a merits-based appeal is not reasonable. Specifically, the BIA requires a non-citizen to make a merits-based showing at the notice stage, often before he is able to review the record or identify his arguments on appeal. The BIA points to nothing in the statutory text or legislative history indicating that this requirement reflects Congressional intent. Moreover, the requirement ignores the realities of appellate practice.”
The full text of Braithwaite v. Garland can be found here:
The First Circuit has remanded a denied adjustment of status application for a Special Immigrant Juvenile ex-gang member, citing the agency’s failure to consider the specific and serious harm he would face if deported due to his status as an ex-gang member.
The full text of Perez-Trujillo v. Garland can be found here:
The Third Circuit has determined that a New Jersey conviction for second-degree robbery is a theft-related aggravated felony because the statute always requires that property be obtained without the owner’s voluntary and intelligent assent. Notably, the court includes various of forms of theft-by-deception in this definition of crimes committed without voluntary and intelligent assent.
The full text of K.A. v. Attorney General can be found here:
